State v. Rice

Joseph
A. Foster, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord,
on the brief and orally, for the defendant.

LYNN,
J.

The
defendant, Kyree Rice, appeals his convictions for one count
of attempted murder, see RSA 629:1, I (2016), and
two counts of first degree assault, see RSA 631:1,
I(b) (2016). He argues that the Superior Court
(Abramson, J.) erred by not instructing the jury on
the principle that the "act of producing or displaying a
weapon shall constitute non-deadly force, " RSA 627:9,
IV (2016), and in prohibiting cross-examination of the victim
about the victim's use of cocaine and marijuana on the
night in question. Because we agree that the court erred in
failing to give the requested jury instruction, we reverse
and remand.

I

The
following facts were adduced at trial. At approximately 1:45
a.m. on May 24, 2015, the victim, Curtis Clay, and his
girlfriend arrived at a restaurant in Manchester. Clay, a
large and powerful man, had consumed approximately six
alcoholic drinks prior to his arrival. The defendant, his
brother Raheem Rice (Raheem), his cousin Beverly Pierson
(Pierson), and his friend Rudy Vasquez (Vasquez), arrived at
the restaurant around the same time.

The
restaurant was very crowded. The defendant initially remained
outside, while Raheem, Vasquez, and Pierson proceeded inside.
Meanwhile, Clay stood inside, near the front of the
restaurant. At some point, the defendant entered the
restaurant and approached Raheem where he was waiting in
line. The defendant overheard Raheem having a disagreement
with another patron about a woman. In response, the defendant
pulled his shirt up to reveal a gun, cocked it, and said,
"you know what time it is." The defendant then
exited the restaurant.

Subsequently,
Pierson stumbled and collided into Raheem. Clay observed
Raheem push Pierson away and Pierson fall to the floor. In
response, Clay pushed Raheem's face with his hand and
punched him. Raheem responded by punching Clay. Vasquez then
pushed Clay from behind and a general melee ensued.

The
defendant overheard the commotion and ran inside. Upon
entering, the defendant observed Clay hit Vasquez, who was
6'4" tall and weighed 260 pounds, with such force as
to knock Vasquez to the floor. Clay then turned back to
Raheem. The defendant attempted to intervene by putting his
arm between Clay and Raheem, but Clay grabbed the
defendant's arm. The defendant responded by removing the
gun from his waistband and, according to a State witness,
sticking it into Clay's stomach. The defendant, however,
testified that he "pulled out [his] firearm" at
this point "[b]ecause Mr. Clay wasn't stopping and I
just thought that if he seen [the gun] maybe he would
stop." The defendant also disputed that he "jammed
the gun into Clay's belly, " as the State
characterized his actions, testifying instead that it was
Clay's action that caused the gun to "look[] like it
did go into [Clay's] torso." According to the
defendant, Clay then punched the defendant twice, knocking
him off his feet and into a booth.

Clay
again turned to Raheem and the two men continued to fight.
Clay knocked Raheem to the ground, straddled him, and
repeatedly punched him. After recovering from being knocked
into the booth and observing Clay straddling and punching
Raheem, the defendant fired two gunshots, both of which hit
Clay. The defendant testified that the first shot was
intended as a "warning shot, " which he believed
did not hit Clay; the defendant said that he fired the second
shot because Clay was continuing to hit Raheem. According to
the defendant, he engaged in this course of conduct because
he believed it necessary to prevent Clay from killing his
brother.

After
the shooting, the defendant left the restaurant. Clay's
girlfriend drove Clay to Elliot Hospital where he received
treatment for gunshot wounds. Clay underwent a battery of
tests at the hospital, including a urine toxicology
screening. He tested positive for alcohol, cocaine, and
cannabis.

Approximately
one week later, the defendant surrendered to the Manchester
Police Department. As is relevant to this appeal, he was
charged with one count of attempted murder and two counts of
first degree assault. See RSA 629:1, I; RSA 631:1,
I(b). The indictments alleged that the defendant committed
attempted murder "when he shot [Clay], " and first
degree assault "when he . . . shot . . . Clay in the
left side" and "when he discharged a firearm into .
. . Clay's right side."

At
trial, the defendant pursued a justification defense. He
admitted that he shot Clay, but argued that he was justified
in using deadly force in defense of Raheem. See RSA
627:4, II(a) (2016). A person is justified in using deadly
force against another person when he reasonably believes that
the other person is about to use unlawful deadly force
against himself or a third person and he reasonably believes
that the amount of force he uses is necessary under the
circumstances. See RSA 627:4, I-II(a); State v.
Etienne, 163 N.H. 57, 77 (2011). Deadly force
"means any assault or confinement which the actor
commits with the purpose of causing or which he knows to
create a substantial risk of causing death or serious bodily
injury, " RSA 627:9, II, (2016), whereas
"'[n]on-deadly force' means any assault or
confinement which does not constitute deadly force, "
RSA 627:9, IV. When, as in this case, evidence of
self-defense or defense of another is admitted, "conduct
negating the defense becomes an element of the charged
offense . . . which the State must prove beyond a reasonable
doubt." Etienne, 163 N.H. at 80-81 (quotation
and citation omitted). The State's position was that the
defendant was not justified in shooting Clay because he
neither believed nor reasonably could have believed that Clay
was about to use deadly force against Raheem, and because the
amount of force he used was not reasonably necessary.

During
trial, but prior to Clay's testimony, the trial court
held a hearing outside the presence of the jury regarding the
relevance of evidence that Clay had ingested cocaine and
marijuana on the night of the fight. Defense counsel argued:

I think it's a fair question to ask [Clay] if he did
cocaine that day. If he says 'no, ' I'm stuck
with the answer but - and I think that a reasonable juror can
assume that combining cocaine and alcohol is going to affect
somebody's ability to perceive. . . . [A]nd also, the
doctor testifie[d] [in his deposition] that it affects his
level of aggression, which is also an issue in this case.

Defense
counsel also proffered the deposition testimony of Dr. Miguel
Gaeta to demonstrate the evidence's relevance. The trial
court ruled that the drug use evidence was irrelevant and,
therefore, inadmissible for impeachment and substantive
purposes because the defendant failed to link the drug use -
through expert testimony or other evidence - to impairment of
the victim's perceptions and memory, or increased
aggressiveness.

In
closing argument, the defendant's counsel asserted that
the defendant used a variety of methods to halt the
victim's aggression towards Raheem. He characterized
these efforts as incrementally more forceful:

[Defense counsel]: He tried to use non-deadly force; put his
arms up; tried to hold Mr. Clay back. What happened when he
did that? He was - his arm was swung and he got punched
twice. During the course of that he tried to show Mr. Clay
the weapon in the hopes that he would stop. Either Mr. Clay
didn't see it or didn't care, but he tried to use it
in a non-deadly manner to get Mr. Clay to stop. Mr. Clay
didn't stop. He was engaged in combat. He was enraged and
he was relentless.

When my client was able to get up out of the booth - (Pause)
- what he saw was that. Mr. Clay, a wild man, just as Ashley
Francis described him. (Pause) And then he saw his brother go
down and Mr. Clay get on top of his brother. And what did Mr.
Clay doing [sic] in this video? Just as I've demonstrated
to you at least twice now, got down and he was like this,
whaling on Raheem Rice. (Pause)

That's the situation that presented itself to Kyree Rice
on May 24. Did he unload that weapon into Mr. Clay? No. He
did not.

He used a range of efforts to try to stop Mr. Clay and those
efforts didn't work. Using his hands, it didn't work.
Show him the gun, didn't work. For those efforts he got
nailed, flew into the booth. Firing a warning shot didn't
work.

Now as it turns out that warning shot did hit Mr. Clay;
wasn't intended to. It was intended to be a warning shot
and as you learned during the cross-examination of Kyree
Rice, the warning actually probably put his brother in
greater danger, probably better than - probably more danger
than Mr. Clay.

Wasn't intended to hit Mr. Clay. Why would he put his
brother in danger? He was trying to stop him.

And then finally, he felt that he had to use under the
circumstances as he saw them that evening, which is the
circumstances that you must put yourself in his shoes, felt
that he needed to use that deadly force. And based upon what
he saw, that use of deadly force was reasonable and
necessary. It was ...

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